Stiles v. Colvin

Filing 18

ORDER Signed by Magistrate Judge F. Keith Ball on 7/31/17. A separate judgment will be entered. (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ANGELA STILES o/b/o B.B.

PLAINTIFF

VS.

CIVIL ACTION NO. 3:16cv110--FKB

NANCY A BERRYHILL, Acting
Commissioner of Social
Security

DEFENDANT

ORDER
I. Introduction
Angela Stiles filed for supplemental security benefits on behalf of her son, B.B.,
on August 14, 2012. After the application was denied both initially and upon
reconsideration, she requested and was granted a hearing before an ALJ. The hearing
was held on May 8, 2014, and on September 10, 2014, the ALJ issued a decision
finding that B.B. is not disabled. The appeals council denied review. Plaintiff now
brings her appeal pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
She alleges that B.B. is disabled based upon asthma, intellectual disability, and a
learning disability.
II. Facts and Evidence before the ALJ
B.B. was born on August 17, 2001, and was 13 years of age at the time of the
decision of the ALJ. He has a history of asthma. In June of 2012, his school district
evaluated him for placement in special education. As a part of this assessment, B.B.
was administered the Woodcock-Johnson III achievement test (WJ-III) and the
Reynolds Intellectual Assessment Scales (RIAS). At the time of testing, B.B. was 10
years of age and had completed the fourth grade. The WJ-III indicated that he was

functioning at a grade level between 2.0 and 2.7 in all areas. R. 136, [10] at 139. On
the RIAS, he achieved a verbal intelligence score of 78, a nonverbal intelligence score
of 102, and a composite score of 88. R. 138, [10] at 141. It was determined that B.B.
met the eligibility guidelines for a Specific Learning Disability (SDL) in basic reading
skills. R. 133, [10] at 136.
In September of 2012, Stephanie Thornton, B.B.’s special education teacher,
completed a questionnaire. Ms. Thornton stated that B.B. was in the fifth grade and
received special education services five hours a week. R. 164-65, [10] at 167-68. She
indicated that in the area of acquiring and using information, B.B. had serious to very
serious problems, explaining that he needed much extra help and support to function in
the inclusion classroom and that his tests were read to him. R. 166, [10] at 169. She
stated that B.B. struggled in all subjects and that anything involving reading caused him
stress. Id. Ms. Thornton indicated that in the area of attending and completing tasks,
B.B needed extra encouragement to complete tasks and extra help to organize, and
prepare. R. 167, [10] at 170. It was her observation that he did not work well in
independent activities. Id. As to the domain of interacting and relating to others, she
indicated that B.B. had some problems and that he needed a very structured
environment. R. 168, [10] at 171. Ms. Thornton stated that B.B. had no problems in the
domains of moving about/manipulating objects, caring for himself, and health and
physical well-being. R. 169-71, [10] at 172-74.
A second special education assessment was completed in May of 2013. The
report stated that B.B.’s learning disability in basic reading skills had a significant impact
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on his progress in the general education classroom. R. 186, [10] at 189. It indicated
that he struggled with anything involving reading, including language and particularly
math, and that he needed the assistance of an inclusion teacher in the general
education classroom. Id. Finally, the report noted that B.B. had been involved in a
couple of fights at school and had been suspended because of them. Id.
The school records indicate more discipline problems in the following school
year, the most serious of which was an incident of fighting. R. 208-212, [10] at 211-15.
In June of 2014, B.B. underwent a psychological evaluation by Dr. Criss Lott.
B.B. was accompanied by his mother at the evaluation. Ms. Stiles reported to Dr. Lott
that B.B. maintained appropriate hygiene and grooming, and she described his daily
living skills as age-appropriate. R. 295, [10] at 298. She stated that B.B. helped to
clean his room, fed his dog, and took out the trash. Id. As to his social skills, she
reported that B.B. enjoyed spending time with friends and relatives and would
occasionally stay overnight with his friends. Id. He enjoyed playing outside and playing
basketball and football. Id. She said that he had been suspended several times from
school, but she indicated that there were no management problems at home or in the
community. R. 295, 297, [10] at 298, 300. During the examination, B.B. was polite and
cooperative. R. 295, [10] at 298. He was alert and attentive and responded
appropriately to questions. Id. It was Dr. Lott’s opinion that B.B. put forth a genuine
effort during testing. R. 296, [10] at 299. On the Wechsler Intelligence Scale for
Children (WISC-IV), B.B. achieved a full scale IQ of 65. Id. On the Wide Range
Achievement Test (WRAT-4), he achieved scores of grade level 2.4 to 3.0 in all subject
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matter areas. Id. Dr. Lott’s provisional diagnoses were borderline intellectual
functioning and an SDL in reading and math. Id. In connection with the examination,
Dr. Lott completed a questionnaire in which he assessed B.B.’s functional capabilities.
He described as “impaired” B.B.’s cognitive development, personal/behavioral patterns,
and concentration, persistence and pace in task completion. R. 300-301, [10] at 303304. With reference to this latter domain, Dr. Lott explained that B.B.’s working memory
score was in the extremely low range. R. 301, [10] at 304.
The administrative record contains the opinions of several agency consultants
who examined the records. Dr. Eva Henderson opined that B.B.’s asthma is nonsevere. R. 276-77, [10] at 279-80. Dr. James Herzog opined that B.B.’s learning
disability constitutes a severe impairment but that it is not of listing severity. R. 270-71,
[10] at 273-74. Dr. Herzog rated B.B.’s functional limitations as follows: No limitation in
interacting and relating with others and caring for himself, a less than marked limitation
in acquiring and using information, and a marked limitation in attending and completing
tasks. R. 272-74, [10] at 275-76. Dr. Lisa Yazdani stated that B.B.’s learning disability
and asthma constitute a severe impairment or combination of impairments but that they
are not of listing severity. R. 282-83, [10] ta 285-86]. She assigned ratings to B.B.’s
limitations in several of the domains as follows: No limitation in interacting and relating
with others, in caring for himself, or in health and physical well-being; a less than
marked limitation in acquiring and using information, and a marked limitation in
attending and completing tasks. R. 204-205, [10] at 287-88.

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At the hearing, B.B. testified that he likes to play sports in the neighborhood,
watch television, and play video games. R. 57, 60, [10] at 60, 63. He can ride a bike.
R. 59-60, [10] at 62-63. Concerning chores, he stated that he has a dog that he takes
care of and that he also takes out the garbage. R. 57, 60, [10] at 60, 63. B.B. said that
he does his homework. R. 58, [10] at 61.
Also testifying was Ms. Stiles. She reported that B.B. takes care of his dog but
that she has to remind him to do so. R. 62, [10] at 65. He is able to play in a group with
other children, but he becomes angry when things do not go his way. R. 68-69, [10] at
71-72. According to Ms. Stiles, B.B. can stay on task with his homework only about
three minutes before he wants to get up and do something else. R. 67, [10] at 70.
III. The Decision of the ALJ
Disability claims by children are determined using a three-step sequential
analysis. See 20 C.F.R. § 416.924. At step one, the ALJ determines whether or not the
claimant is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). If not, the
ALJ moves on to step two, which is a determination of whether the child suffers from a
severe impairment or a combination of impairments that is severe. 20 C.F.R. §
416.924(c). If the ALJ finds that the child suffers from a severe impairment, or a
combination of impairments that is severe, the analysis continues to step three, which
involves a determination as to whether the child’s impairment meets, medically equals,
or is the functional equivalent of an impairment listed in Appendix 1, Subpart P,
Regulations No. 4 (the Listing of Impairments). 20 C.F.R. § 416.924(d).

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Functional equivalency is determined by assessment of all the functional
limitations caused by the child’s impairment or combination of impairments. 20 C.F.R.
§ 416.926a. This assessment requires the ALJ to analyze the child’s ability in six
“domains,” which are “broad areas of functioning intended to capture all of what a child
can or cannot do.” 20 C.F.R. § 416.926a(b)(1). The six functional equivalency domains
are (1) acquiring and using information; (2) attending to and completing tasks; (3)
interacting and relating with others; (4) moving about and manipulating objects; (5)
caring for oneself; and (6) health and physical well-being. Id. A finding of functional
equivalence is made only if the child has “marked” limitations in two domains or an
“extreme” limitation in one domain. 20 C.F.R. § 416.926a(d). A “marked” limitation is
one which seriously interferes with the child’s ability to independently initiate, sustain or
complete activities. 20 C.F.R. § 416.926a(e)(2). It is “more than moderate but less than
extreme.” Id. An “extreme” limitation is a limitation which interferes very seriously with
these abilities. 20 C.F.R. § 416.926a(e)(3). When deciding whether a child has a
marked or extreme limitation, the ALJ must consider the child’s functional limitations in
all areas, including their interactive and cumulative effects. 20 C.F.R. § 416.926a(c).
In her decision, the ALJ found that B.B. has the severe impairment of borderline
to mild mental retardation/learning disability and the non-severe impairment of asthma.
R. 13, [10] at 16. At step three, she determined that these impairments do not meet or
medically equal the requirements for a listed impairment. R. 14, [10] at 17. Thus, the
ALJ was required to assess whether B.B.’s impairments are functionally equivalent to a
listed impairment by analyzing B.B.’s ability to function in each of the six domains. The
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ALJ found that B.B. has a marked limitation in domain one (acquiring and using
information), R. 17, [10] at 20, a less than marked limitation in domains three
(interacting with and relating to others) and five (health and physical well-being), R. 20,
[10] at 23; R. 22, [10] at 25, and no limitations in domains two (attending to and
completing tasks) and four (moving about and manipulating objects), R. 19, [10] at 22;
R. 21, [10] at 24. Based on her finding that B.B.’s limitations were not marked in two
domains or extreme in one domain, the ALJ concluded that B.B. is not disabled within
the meaning of the Social Security Act. R. 22-23, [10] at 25-26.
IV. Analysis and Conclusion
In support of her appeal, Plaintiff makes two arguments: (1) That B.B. meets the
listing for intellectual disability and that the ALJ’s finding to the contrary is not supported
by substantial evidence; and (2) that the ALJ’s finding as to functional equivalence is not
supported by substantial evidence. The Court finds Plaintiff’s argument as to functional
equivalence to be dispositive and has therefore not addressed the remaining argument.
The focus of Plaintiff’s position as to functional equivalence is the ALJ’s finding
that B.B. has no limitations in the domain of attending to and completing tasks. The ALJ
supported her finding on this issue by referencing B.B.’s testimony that he completes
his homework and Dr. Lott’s note that B.B. gave a genuine effort during testing, and by
characterizing Ms. Thornton’s opinion as having indicated that B.B. had no problem
paying attention. R. 19, [10] at 22
The Court finds that the ALJ’s determination on this point is not supported by
substantial evidence. The ALJ was able to arrive at her conclusion only by cherry7

picking from and mischaracterizing the opinions of Ms. Thornton and Dr. Lott. Ms.
Thornton’s evaluation explicitly indicated that that B. B. has problems functioning in this
domain. See R. 167, [10] at 170. In it, she identifies numerous, frequent problems in
this domain and rates most of B.B.’s problems in this area as either “an obvious
problem,” “a serious problem,” or “a very serious problem.”1 Dr. Lott similarly opined
that B.B.’s abilities in the areas of concentration, persistence and pace, and completion
of tasks were impaired. See R. 301, [10] at 304. Both Dr. Yazdani and Dr. Herzog
opined that he has a marked limitation in this domain. See R. 272, 284, [10] at 275,
287. Moreover, the ALJ failed to address Dr. Lott’s opinion on this issue or explain why
she gave it no weight. This failure is particularly troubling given that elsewhere in the
opinion the ALJ stated that she gave significant weight to the opinions of Dr. Lott. See
R. 16, [10] at 19. In summary, the record does not contain substantial evidence to
support the ALJ’s determination that B.B. has no limitation in the domain of attending
and completing tasks. Furthermore, the Court’s conclusion requires remand, because

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The form completed by Ms. Thornton contains a list of thirteen separate components in the area of
attending and completing tasks. The child’s degree of limitation as to each of these components is to be
rated as either “no problem,” “a slight problem,” “an obvious problem,” “a serious problem,” or “a very
serious problem.” Furthermore, the frequency of the problem (monthly, weekly, daily, or hourly) is to be
indicated. Ms. Thornton rated B.B. as having “no problem” as to the components of paying attention
when spoken to directly, sustaining attention during play/sports activities, and carrying out single-step
instructions. R. 167, [10] at 170. She indicated that he has “a slight problem” with waiting to take turns.
Id. As to three components – focusing long enough to finish assigned tasks, changing activities, and
working without distracting himself or others – she indicated that he has “an obvious problem.” Id. She
indicated that he has “a serious problem” with regard to refocusing to task when necessary and
organizing his own things and school materials. Id. She indicated that he has “a very serious problem”
as to the four remaining components: carrying out multi-step instructions, completing school
assignments, completing work accurately without careless mistakes, and working at a reasonable
pace/finishing on time. Id. In all of the areas in which she identified either serious or very serious
problems, Ms. Thornton indicated that the problems occurred on a daily basis. Id.

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had the ALJ properly considered all of the evidence, she may well have found that B.B.
has a marked limitation in a second domain and is therefore disabled.
Accordingly, this matter is hereby remanded to the Commissioner for
proceedings consistent with this opinion. A separate judgment will be entered.
So ordered, this the 31st day of July, 2017.
s/ F. Keith Ball
United States Magistrate Judge

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